ABDUL CADER et al. v. HABIBU UMMA et al

010-NLR-NLR-V-28-ABDUL-CADER-et-al.-v.-HABIBU-UMMA-et-al.pdf


19B6.
( 92 )
Present: Lyall Grant J. and Jayewardene A.J.
ABDtL CADEB et al. v. HABIBU UMMA et al356—Z). 0. Colombo, 12,904.
Prescription against fiduciarius—Minority of fidei commissarii—Accrualof right of possession—Bona fide' division of estate by fiduciaryheirs—Binding effect on fidei commissarii—Section 14 of OrdinanceNo. 22 of 1871.
Possession which commenced before the accrual of a« fideicommissary’s right is not adverse against the fideicommissary.
The bona fide division of property subject to a fidei commissumamong the fiduciaries is binding on the fideicommissaries.
T
WO brothers, having become entitled to property under a willcreating a fidei commissum in perpetuity, divided the estate
and continued in possession of their respective halves. A daughterof one of these was entitled to a one-tenth share of her father's-moiety, and on her death this share devolved on her two minorchildren, the plaintiffs. The defendants resisted the plaintiffs'claim to their mother's share on the ground of continued .andexclusive possession for a period of over thirty years. It wasfurther sought to restrict their rights, if any, to a one-twentiethof their grandfather’s moiety on the ground that the balanceshould come out of the half belonging to the other branch of thefamily. The plaintiffs attained their age of majority in 1921and 1924, respectively. The learned District Judge held againstthe defendants.
Hayley (with him Choksy), for defendants, appellant.—Section 14of Ordinance No. 22 of 1871 excludes minority. As prescription hadalready run against the mother, prescription against her is prescriptionagainst her heirs.
[Jayewardene A.J.—Section 14 does not apply to fidei comwissa;the heirs do not claim from their mother, but derive their rightsfrom the will.]
The proviso to section 14 stands by itself, unqualified by theproviso to section 3, which is advisedly not reproduced in section 14;the latter section is intended to serve a special purpose.
[Jayewardene A.J.—The ruling in Casim v. Dingihamy L doesnot support such a construction.]
That decision did not relate to a question of minority or anydisability, but to the point of time when the right in dispute vestedand prescription commenced. In section 14 prescription is con-sidered entirely from" the point of view of the person claiming itsbenefit, and not from that of the person against whom it operates.
Keuneman, for plaintiffs, respondents (not called upon),i (1906) 9 N. L. B. 257.
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July 19, 1926. Lyall Grant J.—
This is an appeal from the District Court of Colombo. Theplaintiffs claim a declaration of title to an undivided one-tenth shareof the premises bearing Nos. 70 and 71 situate at Main street,Pettah. One Pathumma Nachia was the original owner of theproperties. She by last will No. 10,893 dated July 2, 1859 (Pi),devised this property amongst others in equal shares to her two sons,Casse Lebbe and Segu Lebbe, to be possessed by thejn andtheir heirs from generation to generation in perpetuity under thebond of fidei commissum. At a partition of the property devisedby the will, the premises Nos. 70 and 71, noy in question, wereallotted to Segu Lebbe. Segu Lebbe was first married to MeyadeenNachia, who died leaving five children—Omer, Habibu Umma, HansaUmma, Hanifa Umma and Amina Umma. Habibu Umma is the1st defendant and is the mother of the 2nd to Sth defendants. HansaUmma’s children are the 9th and 18th defendants, and HaniffaUmma was the mother of the 19th to the 23rd defendants. AminaUmma was married to Abdul Careem, who has given evidence in thiscase, and she died leaving two children, who are the 1st and 2ndplaintiffs in this case.
Segu Lebbe was married a second time to Aiyasha Umma andhad three children by her—Moomina Umma, Alia Marikar, andIsanath Umma. Amina Umma was entitled to a^ one-tenth share,and the plaintiffs now claim that share. The last will of PathummaNachia created a fidei commissum in perpetuity, and the onlyquestion that arises for decision is whether the contesting defend-ants have acquired a prescriptive title to the interests of the twoplaintiffs. The plaintiffs admit that they never had occupationof the premises in question and that the contesting defendants havehad occupation for many years—at any rate since 1889.
The learned District Judge decided the case on the footing thatthe issue narrowed itself into this:Whether the 1st and 2nd
plaintiffs were minors at any time during the ten years previous tothe institution of action. He held that by Ordinance No. 22 of1871, section 14, if they were minors at any time within that periodthere could be no prescription against them. On this issue of facthe decided in favour of the plaintiffs, declaring them entitled to anundivided one-tenth share of the premises described in the plan, andgave decree for agreed damages.
It was argued in "appeal that the question whether the 1stand 2nd plaintiffs were minors at any time during the ten yearsprevious to the institution of action was irrelevant. Reliance wasplaced upon the last proviso to section 14 o£ Ordinance No. 22 of1871.
It was admitted that the defendants had been in undisturbedpossession of property for thirty years, and. under the last proviso
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Habibu
Umma
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LyallGrant J.
AbdulCoder v.HabibuXJtnma
of section 14 of the Ordinance, it was said that this should beconclusive proof of title notwithstanding the disability arising fromthe minority of the plaintiffs.
It appears to us, however, that this argument overlooks the factthat the thirty years' possession mentioned in section 14 must beadverse possession, and also , the effect of the proviso to section 3of the Ordinance which provides that the prescriptive period onlybegins to run against parties claiming estates in remainder orreversion from the time when the parties so claiming acquireda right of possession to the property in dispute. It seems to us clearon the Ordinance that a fidei commissarius does not become anadverse claimant under the second proviso of section 14 until heacquires a right of possession. If this is so, there is no adversepossession as against the present plaintiffs for thirty years, andthere is nothing to take the case out of the ordinary rule that theten years required to establish a prescriptive possession do not beginto run until the adverse claimant has attained majority.
This principle underlies the Full Bench decision in Casim i*.Dingihamy (supra). In that case the defendants had been inpossession for sixty-four years on a title granted by a fidei conimis-saritis. On the death of the fiduciarius this possession was held tobe of no avail against a claim by a fidei commissarius.
It was further argued that even if the plaintiffs were entitled tosucceed in respect of Segu Lebbe's half of the estate, they werenot entitled to succeed- as regards the other half, which in 1869 hadbeen conveyed to him by his brother Casse Lebbe. We are unableto accept this argument. The deed of 1809 was a deedof partition between two brothers of an estate to which they hadsucceeded, all of which is subject to a fidei commissum. Any pro-perty burdened with a fidei commissum which is dealt with byarrangement between themselves would still remain under theburden.
This was clearly laid down in. the case of Babcy Nona v. Silva.
The appeal is dismissed, with costs.
Jayewardene A.J.—
The facts leading up to this action and appeal are set out inthe judgment of my brother Lyall Grant. Three questions, two oflaw and one of fact, were argued before us for the appellants. Onthe question of fact, it would no doubt have been more satisfactoryif the birth certificates of the plaintiffs had been produced. Butthe plaintiffs’ father says that he was unable to trace the birthcertificates of his sons and failed to obtain them from the Registrar-General’s Office. He did not register their births. He was in theGovernment Medical Department and was stationed in variousoutstations in the Island, and his wife came to Colombo, where her
1 {1906) 9 N. L. R. 251.
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parents resided, for her confinements. If the births had in factbeen registered, it is strange that the defendants, whose rights toproperty of considerable value are at stake, did not themselvesproduce the certificates to defeat the claim of the plaintiffs. Theywere close relations of the plaintiffs, and must have been aware ofthe locality in which the defendants were bom and their birthsregistered. These considerations lead me to think that there hasbeen a failure to register the births of the defendants. On theevidence on record, the learned District Judge has come to a rightconclusion on the issue regarding the minority of the plaintiffs.
As regards the issue of prescription, it is. contended that under
section 14 of the Prescription Ordinance of 1871 the rights of the
plaintiffs have been extinguished. It was admitted that the
contesting defendants have been in possession since the year 1889,
that is for a period of thirty-five years. The plaintiffs’ rights to the
land in dispute accrued in 1905, when their mother died; at that time
they were minors, and the first plaintiff attained the age of majority
in 1921, and the second plaintiff in 1924, the year the action was
instituted. The appellants have had possession for ten years after
the rights of the plaintiffs accrued. Mr. Hayley, for the appellants,
contends that for the purpose of calculating the thirty years’
possession required by section 14, twenty years’ possession before the
plaintiffs’ right accrued, can be added to the ten years' possession
after the accrual of such right as the adverse possession commenced
before the accrual of their right was not interrupted by their minority.
Now, it has been held by our Courts that prescription does not
begin to run against a fideicommissary until after the death of the
fiduciary, and that the principle that prescription, when it once
begins to run, is not interrupted by the death of the owner does not
apply in such a case (Qeddes v. Vairavy.1) The reason is that the
fideicommissary does not claim under the fiduciary, but under the
will or deed by which the fidei commissum in his favour is created.
The fiduciary can during his lifetime deal with the property as he
likes, but the rights created by him terminate at his death and
cannot prejudice the fidei commissary. Otherwise by ten years’
adverse possession against the fiduciary the rights of fidei-
commissaries not in existence at the time might be extinguished.
It has also been held bv a Full Bench of this Court in Caasim
*
v. Dingihamy (supra), when the point arose directly that section.14 and its proviso in no way affect the proviso to section 3 of theOrdinance, which enacts that the period of ten years shall only beginto run againstparties claiming estates inremainder or
reversion from the time when the parties so claiming acquired aright of possession to the property in dispute, and that thirtyyears’ possession did not give prescriptive title against partieswhose right to possession had not accrued. So that however long
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AbdulCoder v,HabibuVrrvma
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Jayewar-DENE A.J.
AbdulCoder v.HabibuVmma
the period of possession during the lifetime of the fiduciary may be,and in the case just referred to the claimant had possession for aperiod of sixty-five years, the rights of the fideicommissary areunaffected, unless there has been ten years’ possession after his rightsaccrued. Mr. Hayley’s argument requires that adverse possessioncommenced before the accrual of the fideicommissary’s right shouldbe regarded as adverse possession against the fideicommissaryhimself. That would certainly be a contravention of the principlelaid down in Gassim v. Dingihamy (supra). Mr. Hayley contendsthat the point raised by him is not covered by'that case, as therethe fideicommisary was of full age when his right accrued. Iam unable to appreciate the distinction. The rule of prescriptionagainst a fideicommissary must follow the ordinary lines. If heis of full age when his right accrues, then he loses his right afterten years’ adverse possession; if he happens to be a minor at thetime, then there must be ten years’ adverse possession after he hasattained the age of majority. To hold otherwise would be to de-prive a minor fideicommissary of the benefit of the disability whichthe first proviso to section 14 creates in favour of minors. I wouldtherefore hold that the rights of the plaintiffs have not beenextinguished by prescription, and that the decision of the learnedDistrict Judge on the point was correct.
It is then contended that the plaintiffs are entitled, not to aone-tenth, but to a one-twentieth share of the land, as the fideirommissum was created in favour of two persons, and the plaintiffsare the heirs of one of them. The original fiduciaries divided theproperties devised by will, and each took separate properties insteadof having a half share in all of them. This division, it is said, doesnot bind the heirs. But this Court, following the Roman-Dutch law,has held otherwise in Babey Nona v. Silva (supra). Voet (10, 2, 38)says that if a fiduciary heir, pending the fulfilment of the fiduciary-condition, proceeds to a division of the estate with the co-heirs,the fideicommissary heir cannot, after the fulfilment of the conditionannexed to the fidei commissum, sue for a fresh division and havethe previous one set aside, and is bound by that which the fiduciary-heir has done bona fide whether the estate was divided under legalproceedings or by private agreement. There is no suggestion inthis case that the division effected by the fiduciaries was otherwisethan bona fide. The division, therefore, binds the fiduciaries andthe succeeding fideicommissaries. This contention also, must,therefore be over-ruled.
I agree that this appeal should be dismissed, with costs.
Appeal dismissed.